A Comment on Rights Beyond Borders

by Marko Milanovic

Chimène Keitner has written a powerful article in ‘Rights Beyond Borders.’ She is right that there have been few comparative discussions of the extraterritorial reach of domestic (constitutional) protections of individual rights. Her piece goes a long way towards filling that gap.

I am in complete agreement with Chimène that there is much to be learned from such a comparative examination. Judges in a number of countries are now increasingly faced with cases arising from extraterritorial situations, and their approaches in dealing with them are remarkably similar. This is even more the case when it comes to the policy considerations that underpin them. This is not to say that aren’t significant differences between the various domestic legal systems, and that we shouldn’t be cautious in making such comparisons. By and large, however, the problems faced by the courts are the same; the instruments they are applying either say nothing about their territorial scope (as e.g. with the US Constitution) or use remarkably vague and open-ended concepts (as that of state ‘jurisdiction’ in Art. 1 ECHR, that UK courts are applying under the Human Rights Act 1998). It is thus upon the judges themselves to articulate the rules on their (extra)territorial application.

Chimène identifies three types of judicial reasoning that percolate through the case law on the extraterritorial application of domestic individual rights instruments: country, compact, and conscience. I again completely agree with Chimène that all of these types of reasoning are present in the case law, but I am not sure that these pithy three Cs provide us with a sufficiently complete understanding of the outcomes of these cases. It’s one thing to identify what judges say they do, another to identify why they’re actually doing it. Other considerations also seem to be at play. For example, in the UK context in particular we have the additional dynamic of the relationship between the UK courts and Strasbourg, with the British judges essentially trying to follow Strasbourg but at the same time not overtake it – a particularly unenviable task considering the horrible mess that the European Court has made on the whole extraterritoriality front.

As Chimène rightly points out, it is compact-based reasoning, i.e. one which conditions the existence of rights by membership in the polity, that distinguishes domestic case law from that on the extraterritorial application of human rights treaties. This is a particularly distinguishing characteristic of US case law; we need only remind ourselves of the debate in Eisentrager between Justice Jackson, writing for the majority and emphasizing the importance of citizenship quite heavily, and Justice Black, admonishing the Court that ‘[o]ur nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live.’

Ultimately, the question whether rights should depend on citizenship admits only of an ideological answer. It is in the final analysis for American lawyers and people to determine how their Constitution applies abroad. However, other legal systems have already decided that citizenship should not be the basis for the protection of individual rights, whether extraterritorially or not. It is above all international law that has unambiguously adopted the principle of universality of human rights. To that extent I must part ways with Chimène somewhat – in my view citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg. A UK national in Iraq should never have more rights vis-a-vis the UK than an Iraqi national in the same situation. To that extent, as I discuss here, the UK Supreme Court’s recent decision in Smith v Secretary of State for Defence, in which it held that UK soldiers do not have rights against the UK under the ECHR when operating outside an area under UK effective control, was in accordance with the principle of universality. Its flaw lies not in failing to engage in compact-based reasoning, but in following the prior Al-Skeini judgment of the House of Lords which denied Iraqis rights under the ECHR outside a custodial context.

This brings me to my main point. In many cases judges simply disguise the real policy considerations behind their decisions in pure legalisms, offering nothing more than formalist justifications for a denial of rights. This was the case, for example, with the European Court’s exegesis in Bankovic on the concept of state ‘jurisdiction’ in Art 1. ECHR (see more here), or with the Canadian Supreme Court’s equally flawed discussion and reliance on the general international law concepts of jurisdiction to prescribe and enforce in R v. Hape (see more Pierre-Hugues Verdier’s case note in (2008) 102 AJIL 143). This is I think also the case more generally with all types of ‘country’-based reasoning, as Chimène puts it, i.e. those based on strict considerations of territorial sovereignty. I have never understood (nor seen it explained) why exactly should naked territorial title at all matter in deciding whether an individual affected by a particular state action should have rights against that state. Cuba’s sovereignty over Guantanamo is an irrelevancy, as is the United States’ lack thereof; it is de facto control over territory and individuals, not the right to exercise such control, that enables either the protection or the violation of the rights of individuals.

Judges hide behind ‘sovereignty’ as if it was some sort of magic word simply because it is easier for them to do so than to openly acknowledge that they are engaging in policy-making on the basis of considerations of practicality and effectiveness. It was not the arcana of the concept of state jurisdiction that guided the judges of the European Court in Bankovic, but their own (perfectly understandable and reasonable) fears: do we want to micromanage the use of force by states? Even if we wanted to, how would we do so? Do we have an adequate institutional capacity? Are we, for example, sufficiently familiar with IHL and with how it should interact with human rights? Are we prepared to pay the price that introducing the starkly realist calculus of IHL into the oh-so-fluffy and cuddly world of human rights might carry? (and vice-versa; see more this excellent article by Naz Modirzadeh). Are we able to engage in effective fact-finding? Where do we get the evidence? And so forth. It is these same considerations of effectiveness that led Justice Kennedy in Boumediene to confine the Court’s holding to Guantanamo, and leave Bagram and the rest for the future.

In short, in my view the real tension is between these considerations of effectiveness and practicality on the one hand and those of conscience (including the universality of human rights, if that is one’s ideological framework) on the other. It is primarily this tension which explains the conflicting strands of case law across several jurisdictions. While Chimène of course does take note of this tension in her article, it is perhaps a bit too overshadowed by the three Cs. This small criticism notwithstanding, her article is a must-read for anyone interested in the extraterritoriality of individual rights, whether under domestic or under international law.

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